STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADA SAPP, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1479

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held on October 2, 1980, in Marianna, Florida, before P. Michael Ruff, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mrs. Ada Sapp, pro se

Route 3, Box 137

Cottondale, Florida 32431

For Respondent: John L. Pearce, Esquire

District II Legal Counsel Department of Health and

Rehabilitative Services

2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32303

This cause came on for hearing on the Petition of Ada Sapp of Marianna, Florida, for a determination of whether the petitioner's subsidy under the Department of Health and Rehabilitative Services Home Care for the Elderly Program was properly reduced. The Petitioner was given notice on July 8, 1980, that her subsidy under this program was reduced from $96.00 per month to $72.00 per month due to an increase she had received in her Supplemental Security Income effective July 1, 1980. Supplemental Security Income is a benefit received by the Petitioner pursuant to the Federal Social Security Act, and the subject increase under this program was the result of an automatic cost-of- living increase predicated upon the rise in the cost of living since January 1, 1980, a self-executing provision in the federal law. The Respondent , the Department of Health and Rehabilitative Services, presented one witness, a Social and Rehabilitative Services counselor with the Division of Aging and Adult Services, who is the supervisor of the Petitioner's caseworker. The Respondent's exhibits consisted of Exhibit 1, the Home Care for the Elderly subsidy schedule, upon which the subject subsidy benefit reduction was predicated, and Exhibit 2, the "Notice of Case Action," which is merely the written notification to the Petitioner that her benefits under the State program were to be reduced. The Petitioner presented four witnesses and Exhibits A, B and C. The Respondent acknowledged that, inasmuch as it is affirmatively seeking

to reduce benefits already being paid to the Petitioner, that it has the burden of proof on that issue. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1st DCA Fla. 1977); Amico v. Division of Retirement, 352 So.2d 556 (1st DCA Fla. 1977).

FINDINGS OF FACT

1. The Petitioner is an elderly lady who is the recipient of benefits pursuant to the "Home Care for the Elderly" program administered by the Respondent pursuant to Section 410.035, Florida Statutes. The subject program is designed to be an alternative to institutionalized care in a nursing home for such elderly, physically disabled citizens as the petitioner, Mrs. Sapp. The program's purpose is to enable such persons to remain in a physically and emotionally wholesome family environment, if at all possible, rather than being forced to reside in a nursing home institution when they are no longer able to care for themselves. In the Petitioner's case, a family member, Mrs. Taylor, is able to provide round-the-clock care for the Petitioner in return for which the Respondent (Department) pays the Petitioner a home care subsidy based upon a flat rate schedule in some way related to the recipient's income (See Exhibit No. 1). The State benefits by such a program since a recipient such as the Petitioner, who qualifies fully for subsidized care in a nursing home, with its substantially greater expense, can be maintained much less expensively at home.

   
   

2. On or about July 1, 1980, the petitioner received notice from the Federal social Security Administration that her Supplemental Security Income benefits would be increased due to an increase in the cost of living during the past year. Because of this and because the petitioner had no other "countable income" for the purposes of the Social Security Act benefits, her Supplemental Security Income (551) was raised to $238.00 per month. Upon learning of the increase in the Petitioner's 551 benefits, the Respondent, apparently following the subsidy schedule contained in Exhibit No. 1, reduced the benefits paid to the Petitioner from $96.00 per month to $72.00 per month. The subsidy schedule contained in Exhibit No. 1 makes no allowance for increase in the cost of living, but rather, is apparently based on the "institutional care policy" or based (pursuant to Section 410.035, Florida Statutes) on the minimum payment the recipient would be entitled to for full institutional nursing home care. The State subsidy amounts depicted on Exhibit No. 1 may be within the range of less then 45 percent and more than ten percent of the minimum institutional nursing home care payment pursuant to Section 409.266, Florida Statutes, but there is no showing of the amount of such institutional care benefits. The Respondent described the income received from the federal program and other sources as a dollar-for-dollar "set off" against the income she receives from the home care subsidy program. That contention is not accurate, however, inasmuch as the State subsidy benefit reduction involved herein was not a reduction in the same sum as the subject increase in the federal 551 payment, and additionally, once the State benefits were reduced to the disputed amount of $72.00 per month, then they would remain at $72.00 per month oven if the federal benefits ultimately increased by several hundred dollars. Thus, it is obvious that the federal benefits do not operate as a dollar-per-dollar "set off" against the State benefits normally due. The Respondent's position that the federal benefits are fully countable income in calculating the amount of benefits due in order to provide such a recipient as the Petitioner with her fully allowable income under this Home Nursing Care program, is not an accurate description of the State policy nor the means by which the State benefits are calculated. It is undeterminable how the benefits are calculated or why and in what manner the federal benefits under the SSI program are considered in large part to be "countable income" in determining the Petitioner's financial status and

   entitlement under the State program. The Respondent apparently arrived at the

   $24.00 per month reduction in benefits under the Section 410.035 program by applying the Petitioner's new increased income under the federal program to the corresponding chart of State benefits contained in Exhibit No. 1, the origin or derivation of which was not shown. There was no definitive showing of the amount of relevant nursing home care payments which the Petitioner would be entitled to if she were confined in a nursing home, and thus no means to calculate the fractional portion thereof due the Petitioner as a subsidy for home nursing care pursuant to the program under discussion.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause.

   
   

4. The Respondent herein, is seeking to reduce the benefits and thus must prove the affirmative of the issue of whether the Petitioner's benefits should be reduced.

   
   

5. Section 410.035, Florida Statutes, provides in pertinent part:

   
   

   1. The department shall establish by rule by January 1, 1978, a schedule of subsidy payments to be made to persons providing home care for certain eligible elderly persons. Payments shall be no less than ten percent of the prevailing rate paid by the department for the lowest level of

      nursing home care under Section 409.266, and no greater than 45 percent of said amount.

      Payment shall be based on the financial status of the person receiving care. . . .

      
      

6. The Department herein has made no showing of the manner in which the subsidy benefit, and the subject reduction thereof, was calculated and whether or not the calculation was based on a validly adopted rule pursuant to the above statutory criteria. The Department has merely sponsored Exhibit No. 1, which is a faintly legible xerox copy of a subsidy schedule entitled "Home Care for the Elderly Table for Computing Payments." There was no showing how the benefit amounts contained therein were arrived at, what relationship they bore to the benefits allowable for full institutional nursing home care pursuant to Section 409.266, nor what the minimum institutional nursing home care benefits under Section 409.266 would be for a patient such as Mrs. Sapo. Finally in this regard, there was no showing how any such calculations were related to Mrs. Sapp's personal financial status, if any such calculations were made, as opposed to the apparent mere reference to the table contained in Exhibit No. 1, the origin of which is unexplained in this record. There has been no showing of any rule containing a method or formula for arriving at the minimum nursing home care benefit allowable to a patient such as the Petitioner under Section 409.266 and thus, there has been no showing whether the benefits alleged to be due Mrs. Sapp are within the percentage range (ten percent to 45 percent of the Section

   409.266 amount) provided for in Section 410.035, Florida Statutes. Accordingly, no basis has been shown in this record for calculation of the Section 410.035 benefits which are the subject of this cause.

   
   

7. The Department's witness described its policy to be that any other income received by such a patient would be set off "dollar for dollar" against

   the benefits ordinarily due from the State under the subject program. The application of the benefit levels contained in Exhibit No. 1, however, show that this is not the case, as indicated by the fact that the reduction in benefits proposed by the Department is not in the same amount as the increase in benefits under the Supplemental Security Income program of the Social Security Administration and, further by the fact that once the Petitioner's benefits are reduced, as herein, to $72.00 per month pursuant to the Exhibit No. 1 table, she can then receive as much as $500.00 per month from the federal program without any other benefit reduction. Thus, there is a conflict on the face of the record with regard to the relationship between the level of State benefits and the level of federal Social Security benefits involved.

   
   

8. The language in the above-quoted portion of the pertinent statute to the effect that payments shall be based on the financial status of the person receiving care implies, in view of the percentage range of possible benefit payments provided for in the same subsection, that the Department has discretionary power in relating the benefits to be paid under this program to the financial status of the person to receive any care or benefits due. In view of this discretionary consideration of financial status, there was no justification demonstrated for the exercise of this discretionary power in favor of the inclusion of the Petitioner's Supplemental Security Income (envisioned itself as a benefit for categorically needy, aged persons by Chapter 409, Florida Statutes) in counting up the other income received by the Petitioner for the purpose of determining what, if any, benefits were due her under the home care program. This is especially true when one considers that such Supplemental Security Income for needy persons and even the interest received on savings accounts of up to $1,000.00 is not considered "countable income" for purposes of determining Medicaid benefits pursuant to Section 409.266. There simply was no explanation in this record of why this discretionary power was exercised in this manner in the situation of this petitioner, when the same agency does not consider such federal benefits as countable income for purposes of financial eligibility under Section 409.266, especially when the section, sub judice, refers to Section 409.266 in delineating the general guidelines for calculating the Home Care for the Elderly benefits. Thus, in the absence of proof, it can only be concluded that the Department acted arbitrarily by exercising its discretion in calculating financial eligibility of this Petitioner in this manner.

RECOMMENDATION

Having considered the competent, substantial evidence of record, the foregoing Findings of Fact and the Conclusions of Law, it is concluded that competent, substantial evidence has not been presented which will sustain the Respondent's burden of proving adequate justification for its reduction of the Petitioner's Home Care for the Elderly benefits. It is, therefore,

RECOMMENDED that the Petitioner continue to receive the benefits in the amount of $96.00 per month which she was receiving prior to the agency action herein involved and that Home Care for the Elderly benefits withheld from her pursuant to the agency's action be restored.

DONE and ENTERED this 6th day of November, 1980, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1980.

COPIES FURNISHED:

Mrs. Ada Sapp Route 3, Box 137

Cottondale, Florida 32431

John L. Pearce, Esquire District II Legal Counsel Department of Health and

Rehabilitative Services 2639 North Monroe Street Suite 200-A

Tallahassee, Florida 32303

Docket for Case No: 80-001479

Orders for Case No: 80-001479